:: :: Governor Sign Suction Dredging Bill AB 120

Interested Parties

Today, July 26, 2011, Assembly Bill 120 was approved by Governor Brown.
This legislation amends seven different codes within California State
law including the Fish and Game Code. Two paragraphs in this bill refer
to suction dredge mining and have substantial impacts on the process to
conduct environmental review and adopt amended regulations guiding
suction dredge mining in California.

The Department of Fish and Game released draft regulations and a
related Draft Subsequent Environmental Impact Report (SEIR) for public
review on February 28, 2011. We held six public meetings and accepted
public comments through May 10, 2011. At that time we projected that we
would be adopting new regulations and certifying the Final SEIR by the
end of 2011. This would then have permitted the sale of suction dredge
permits under newly adopted regulations.

Assembly Bill 120 affects this effort in four important ways.

First, it establishes an end date for the current moratorium of June
30, 2016. The current moratorium was established by SB 670, and took
effect on August 9, 2009, without any specific end date. The new law
specifies that the moratorium will end on June 30, 2016, regardless of
whether DFG completes court-ordered environmental review of its existing
permitting program or adopts new regulations. Of course, further
legislation or action by the courts could modify that circumstance.

Second, AB 120 requires that any “new regulations fully mitigate all
identified significant environmental impacts.” As directed by the
Alameda County Superior Court and SB 670, DFG prepared the Draft SEIR to
meet requirements of the California Environmental Quality Act (CEQA). In
addition to CEQA, AB 120 now requires DFG to meet a “fully mitigate”
standard for any adopted suction dredge mining regulations in order for
the new moratorium to end any earlier than June 30, 2016. “Fully
mitigate” is not defined in statute or regulation, however, and
previously the term has only been used in the Fish and Game Code in
section 2081, subdivision (b), of the California Endangered Species Act.

Third, a new condition, required by AB 120 is “a fee structure is in
place that will fully recover all costs to the department related to the
administration of the program.” DFG takes the view that the current
fee structure is not sufficient to support the level of effort which
should be devoted to implementing our authority to regulate suction
dredge gold mining. In addition to the administrative costs of selling
permits, DFG believes we should have environmental scientists funded
through suction dredge permit fees to conduct on-site inspections as
needed prior to issuing permits and also to monitor suction dredge
mining to collect data on effects on aquatic and terrestrial organisms
and habitat. Further, suction dredge permit fees should provide funding
for game wardens to inspect, monitor and enforce compliance with any new
regulations. Under current law, however, the fee structure for DFG’s
permitting program is prescribed by statute. Any change to that
structure is beyond the authority of DFG and any such change will
require action by the California Legislature and related approval by the
Governor. Because of the legislative calendar for submittal of new
legislation and the legislative process itself, it is very unlikely that
any change to the existing fee structure will occur within the 2011
calendar year.

Finally, the previous moratorium established by SB 670 was clear that
DFG needed to take several actions (i.e. comply with CEQA and adopt
amended regulations) which would then allow suction dredge mining to
resume, under the new regulations. Said another way, DFG had the final
State approval to complete the process, subject only to the Alameda
County Superior Court’s concurrence. AB 120 adds a legislative step,
described in the previous paragraph. Simply put, the legislature will
need to affirmatively approve a new fee structure, before suction dredge
mining can resume under new regulations. The perspectives of legislators
about sufficiency of a fee structure and suction dredge mining generally
will affect the probability of such legislation being approved.

With this set of new facts in front of DFG, we are evaluating the
extent to which the work we have already done can be used under the
requirements of AB 120, and how we might proceed. We do not yet have a
revised workplan or schedule. However, our previous projection that this
process would be complete by the end of 2011 is no longer viable. It
will likely be several weeks from now before we have determined what we
will need to proceed and how we can do so. I will provide additional
information to the recipients of this message when there is something
new to report.

Mark Stopher
Environmental Program Manager
California Department of Fish and Game
601 Locust Street
Redding, CA 96001

voice 530.225.2275
fax 530.225.2391
cell 530.945.1344
mstopher@dfg.ca.gov